Case 1:17-cv-02069-TSC Document 31 Filed 01/05/18 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN DOE,
Petitioner,
v.

No. 17-cv-2069 (TSC)

GEN. JAMES N. MATTIS,
in his official capacity as SECRETARY OF
DEFENSE,
Respondent.

PETITIONER’S RESPONSE TO COURT’S ORDER OF DECEMBER 23, 2017,
AND MOTION REGARDING CONTINUED INTERIM RELIEF
The American Civil Liberties Union Foundation (“ACLUF”), formerly
proceeding as Petitioner and Next Friend, hereby informs the Court that pursuant to the
Court’s Order of December 23, 2017, ECF No. 30, counsel for the ACLUF
communicated with John Doe, the U.S. citizen detainee in this action, via
videoconference on January 3, 2018, and John Doe informed counsel for the ACLUF
that: (1) he wishes to continue this habeas corpus action; and (2) he wishes for the
ACLUF to represent him in this action.
Petitioner John Doe 1 (“Petitioner”), by undersigned counsel, hereby respectfully
requests that the Court order Respondent to file a Return to the Petition for a Writ of
Habeas Corpus, ECF No. 4, by January 10, 2018. See 28 U.S.C. § 2243 (return to habeas

1

The caption above has been changed to reflect the fact that the Petitioner is now John
Doe and not the ACLUF. The proposed order filed herewith includes a paragraph
directing the Clerk to change the docket accordingly.

 Case 1:17-cv-02069-TSC Document 31 Filed 01/05/18 Page 2 of 4

petition “shall” be made “within three days unless for good cause additional time, not
exceeding twenty days, is allowed”); see also, e.g., Fay v. Noia, 372 U.S. 391, 401–02
(1963) (“[habeas’s] function [is] to provide a prompt and efficacious remedy” for
unlawful detention).
Petitioner further requests that the Court continue the interim relief provided in
the Court’s Order of December 23, 2017, ECF No. 30, by directing Respondent to refrain
from transferring Petitioner until the Court issues a final judgment on his habeas
petition. 2 Petitioner seeks to exercise his right to “a meaningful opportunity to
demonstrate” that his detention is unlawful. Boumediene v. Bush, 553 U.S. 723, 779
(2008); accord Peyton v. Rowe, 391 U.S. 54, 58 (1968) (habeas writ “assures . . . that a
prisoner may require his jailer to justify the detention under the law”). Respondent
should not be permitted to deny Petitioner that fundamental right by forcibly transferring
him beyond the reach of this Court. See Ex parte Endo, 323 U.S. 283, 307 (1944) (court
may act to ensure that a prisoner’s habeas rights are not “impaired or defeated by the
removal of the prisoner from the . . . jurisdiction of the District Court”). The Court has
authority to continue this interim relief under the federal habeas corpus statute, 28 U.S.C.
§ 2241 et seq., and the habeas corpus Suspension Clause, U.S. Const. art. I, § 9, cl. 2. 3
Courts have historically exercised their power to control the custody of the
prisoner during the pendency of habeas cases. See, e.g., In re Kaine, 55 U.S. (14 How.)
103, 133–34 (1853) (Nelson, J., concurring in part and dissenting in part) (court has the
2

The government has informed counsel for Petitioner that it will oppose this request.
The government has also informed counsel for Petitioner that it will seek to extend the
proposed return date.
3
In addition, the Court has power under the All Writs Act, 28 U.S.C. § 1651(a), to issue
orders preserving the status quo and protecting its jurisdiction over Petitioner’s challenge
to his unlawful detention.
2

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power to control the custody of the prisoner while habeas proceedings are pending “and
the safe keeping of the prisoner is entirely under the authority and direction of the court”
during that period (citations omitted)). This authority dates back at least to the celebrated
English Habeas Corpus Act of 1679, and was an essential part of courts’ ability to
provide habeas relief at the time of the Framing. See 1 William Blackstone,
Commentaries *133 (extolling the act as a “second magna carta”); Helen A. Nutting, The
Most Wholesome Law—The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527, 534
(1960) (Habeas Corpus Act of 1679 responded to charges that the Crown’s prisoners
were being transferred “so that writs from Westminster could not reach them”).
Accordingly, U.S. courts exercising habeas corpus jurisdiction have consistently
recognized their power not just to decide the lawfulness of a citizen’s detention, but also
to take steps to ensure that the respondent does not evade the court’s jurisdiction by
removing a prisoner from it. See, e.g., United States v. Davis, 25 F. Cas. 775 (C.C.D.C.
1840) (Case No. 14,926) (holding custodian in contempt for removing alleged slaves
from the District of Columbia to avoid writ for their freedom and then refusing to
produce them when ordered to do so); In re Hamilton, 11 F. Cas. 319, 319 (S.D.N.Y.
1867) (Case No. 5,976) (discussing commitment of officer for contempt of the writ by
transferring petitioner from Philadelphia to New York). 4

4

The Court’s authority to issue a time-limited order restricting the transfer of the
Petitioner in aid of its habeas jurisdiction is not undermined by cases rejecting transfer
injunctions that violated the “rule of non-inquiry.” See Omar v. McHugh, 646 F.3d 13,
19 (D.C. Cir. 2011) (“[A]pplying what has been known as the rule of non-inquiry, courts
historically have refused to inquire into conditions an extradited individual might face in
the receiving country.”). Petitioner’s motion seeks to continue to prevent the United
States from pretermitting this habeas action while the Court considers the lawfulness of
his detention; it makes no claims requiring the Court to examine conditions in any
receiving country. Cf. id. at 18–19 (detainee seeking “judicial review of conditions in the
3

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This Court has already exercised its authority to issue a limited restriction against
the government’s transfer of Petitioner to preserve the status quo during this habeas
proceeding. Order of December 23, 2017, ECF No. 30. Petitioner respectfully requests
that the Court continue that restriction for the pendency of this action so that Petitioner
can secure the meaningful review of his detention guaranteed by the Constitution and
laws of the United States.

Dated: January 5, 2018

Respectfully submitted,
/s/ Jonathan Hafetz____________
Jonathan Hafetz (D.C. Bar No.
NY0251)
Hina Shamsi (D.C. Bar No. MI0071)
Brett Max Kaufman (D.C. Bar No.
NY0224)
Dror Ladin
American Civil Liberties Union
Foundation
125 Broad Street—18th Floor
New York, New York 10004
Tel: 212-549-2500
Fax: 212-549-2654
jhafetz@aclu.org
hshamsi@aclu.org
bkaufman@aclu.org
dladin@aclu.org

Arthur B. Spitzer (D.C. Bar No. 235960)
American Civil Liberties Union
of the District of Columbia
915 15th Street, NW—2nd Floor
Washington, DC 20005
Tel: 202-457-0800
Fax: 202-457-0805
aspitzer@acludc.org

Counsel for Petitioner

receiving country” prior to transfer); Kiyemba v. Obama, 561 F.3d 509, 516 (D.C. Cir.
2009) (same for non-citizen Guantánamo detainees seeking to bar transfer based on fear
of torture and/or further detention in a receiving country).
4